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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 5, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST VIRTUAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 77-0357037
(State of Incorporation) (I.R.S. Employer Identification Number)
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3393 OCTAVIUS DRIVE
SUITE 102
SANTA CLARA, CA 95054
(408) 567-7200
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1997 EQUITY INCENTIVE PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
1997 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full titles of the plans)
James O. Mitchell
Chief Financial Officer
First Virtual Corporation
3393 Octavius Drive
Suite 102
Santa Clara, CA 95054
(408) 567-7200
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Copies to:
LEE F. BENTON, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CALIFORNIA 94306
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF SECURITIES PROPOSED MAXIMUM PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED AMOUNT TO BE REGISTERED OFFERING PRICE PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Stock Options and Common Stock 5,025,000 $5.83906 - $15.50 $51,803,986.14 $ 15,282.18
(par value $.001)
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the Securities
Act of 1933, as amended (the "Act"). The offering price per share and
aggregate offering price for the unissued stock options and Common Stock
are based upon the average of the high and low prices of Registrant's
Common Stock as reported on the Nasdaq National Market System on April 29,
1998. The offering price per share and aggregate offering price for the
outstanding stock options are based upon the exercise prices of such
options. The following chart illustrates the calculation of the
registration fee:
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<TABLE>
<CAPTION>
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OFFERING PRICE AGGREGATE OFFERING
TITLE OF SHARES NUMBER OF SHARES PER SHARE PRICE
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<S> <C> <C> <C>
Shares issuable pursuant to outstanding stock options
pursuant to the 1997 Equity Incentive Plan 2,676,603 $ 5.83906 $ 15,628,832.64
Shares issuable pursuant to unissued stock options 1,948,397 $ 15.50 $ 30,200,153.50
pursuant to the 1997 Equity Incentive Plan
Shares issuable pursuant to outstanding stock options pursuant 50,000 $ 11.00 $ 550,000.00
to the 1997 Non-Employee Directors Stock Option Plan
Shares issuable pursuant to unissued stock options pursuant 200,000 $ 15.50 $ 3,100,000.00
to the 1997 Non-Employee Directors Stock Option Plan
Shares issuable pursuant to the 1997 Employee Stock 150,000 $ 15.50 $ 2,325,000.00
Purchase Plan
Proposed Maximum Aggregate Offering Price $ 51,803,986.14
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</TABLE>
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by First Virtual Corporation (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant
to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or either (1) the Company's latest
prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933,
as amended (the "Securities Act"), that contains audited financial
statements for the Company's latest fiscal year for which such statements
have been filed, or (2) the Company's effective registration statement on
Form 10 or 20-F filed under the Exchange Act containing audited financial
statements for the Company's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual
reports, the prospectus or the registration statement referred to in (a)
above.
(c) The description of the Company's Common Stock which is
contained in a registration statement filed under the Securities Act,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior
to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part of this registration statement from the date of the
filing of such reports and documents.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the
Company has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under
the Securities Act. The Company's Bylaws also provide the Company will
indemnify its directors and executive officers, and may indemnify its
other officers, employees and other agents, to the fullest extent not
prohibited by Delaware law.
The Company's Certificate of Incorporation provides for the
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Company and its stockholders. These
provisions do not eliminate the directors' duty of care and, in
appropriate circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for
breach of the director's duty of loyalty to the Company, for acts or
omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for any transaction from which the director
derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under
Delaware law. The provision does not affect a director's responsibilities
under any other laws, such as the federal securities laws or state or
federal environmental laws.
The Company has entered into agreements with its directors and
executive officers that require the Company to indemnify such persons
against expenses, judgments, fines, settlements and other amounts actually
and reasonably incurred (including expenses of a derivative action) in
connection with any proceeding, whether actual or threatened, to which any
such person may be made a party by reason of the fact that such person is
or was a
3.
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director or officer of the Company or any of its affiliated enterprises,
provided such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. The indemnification agreements
also set forth certain procedures that will apply in the event of a claim
for indemnification thereunder.
In addition, the Company has entered into certain agreements in
connection with the Company's equity financings which provide for the
indemnification of directors and officers in certain circumstances,
including indemnification for liabilities arising under the Securities
Act. The Company also maintains an insurance policy for its directors and
officers insuring against certain liabilities arising in their capacities
as such.
EXHIBITS
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages.
99.1* 1997 Equity Incentive Plan
99.2* 1997 Employee Stock Purchase Plan
99.3* 1997 Non-Employee Directors' Stock Option Plan
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*Incorporated by reference to the same exhibit filed with the Company's Form S-1
Registration Statement (File No.333-38755) filed on October 24, 1997, and any
amendments thereto.
4.
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UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference herein.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
2. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference herein shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of
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expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Clara, State of California, on May 4, 1998.
FIRST VIRTUAL CORPORATION
By: /s/ RALPH UNGERMANN
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Ralph Ungermann
President and Chief Executive Officer
6.
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ralph Ungermann and James O. Mitchell,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in connection therewith, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or
their or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ RALPH UNGERMANN President, Chief Executive May 4, 1998
- ---------------------------------------- Officer and Director
Ralph Ungermann (Principal Executive Officer)
/s/ JAMES O. MITCHELL Vice President, Operations and May 4, 1998
- ---------------------------------------- Chief Financial Officer
James O. Mitchell (Principal Financial and
Accounting Officer)
/s/ NEAL DOUGLAS Director May 4, 1998
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Neal Douglas
/s/ PIER CARLO FALOTTI Director May 4, 1998
- ----------------------------------------
Pier Carlo Falotti
/s/ DAVID A. NORMAN Director May 4, 1998
- ----------------------------------------
David A. Norman
/s/ JAMES SWARTZ Director May 4, 1998
- ----------------------------------------
James Swartz
Director _____, 1998
- ----------------------------------------
Enzo Torresi
</TABLE>
7.
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
NUMBER
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement 24.1 Power of Attorney is
contained on signature pages
99.1* 1997 Equity Incentive Plan
99.2* 1997 Employee Stock Purchase Plan
99.3* 1997 Non-Employee Directors' Stock Option Plan
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*Incorporated by reference to the same exhibit filed with the Company's Form S-1
Registration Statement (File No. 333-38755) filed on October 24, 1997, and any
amendments thereto.
8.
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EXHIBIT 5.1
Lee F. Benton, Esq.
Direct: (650) 843-5017
Internet: [email protected]
May 4, 1998
First Virtual Corporation
3393 Octavius Drive, Suite 102
Santa Clara, CA 95054
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by First Virtual Corporation (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of an aggregate of 5,025,000 shares of
the Company's Common Stock, $.001 par value (the "Shares"), pursuant to the
Company's 1997 Equity Incentive Plan, 1997 Employee Stock Purchase Plan and 1997
Non-Employee Directors' Stock Option Plan (collectively the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Amended and Restated Certificate of Incorporation and
Bylaws and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have assumed
the genuineness and authenticity of all documents submitted to us as originals,
the conformity to originals of all documents submitted to us as copies thereof,
and the due execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and the related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ LEE F. BENTON
-----------------------------
Lee F. Benton
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 30, 1998, except as to Note 10
which is dated as of April 28, 1998, which appears on page F-2 of the
Registration Statement on Form S-1 (File No. 333-38755) of First Virtual
Corporation dated April 29, 1998.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
San Jose, California
April 28, 1998
10.
